E)
Other measures of reparation requested
a)
Adaptation of domestic law in relation to the Counter-terrorism Act
455. The Commission asked the Court to order the State to “[a]dapt the anti-terrorist
legislation embodied in Law 18,314, so that it is compatible with the principle of legality
recognized in Article 9 of the American Convention,” and indicated that the 2010 reform of the
Counter-terrorism Act did not entail a substantial modification that made it compatible with this
article, because it was a structural change that kept the identical wording to the previous
version, and that the changes were merely in phrases and connecting words used to unite the
three hypotheses relating to the terrorist intent.
456. The FIDH asked that the Court order the “repeal of Law 18,314” or, “[s]ubsidiarily,” its
adaptation “and that of other domestic laws to international standards,” and indicated that it
shared the Commission’s opinion that the amendments to Law No. 18,314 had not been
substantive as regards the principle of legality. CEJIL requested “the adaptation of the legal
framework applicable to cases of presumed terrorist acts to the standards of international
human rights law,” and recognized the progress made by the amendments to the Counterterrorism Act insofar as the legal presumption of terrorist intent had been eliminated and the
non-applicability of this law to minors had been established. Nevertheless, it considered that the
obstacles as regards international standards had not been overcome, “especially [those related
to] the definition of the offenses included in the law.”
457. The State indicated that, in 2010, a reform of the Counter-terrorism Act was approved in
which its articles 1 and 2 were amended, eliminating the presumption of terrorist intent and the
applicability of this law to minors. It indicated that “[t]he definition of terrorist offense […]
complies with the principle of legality” and that “[t]here are no references in this law that could
lead to an erroneous interpretation of the offense by either the general population or the courts
of justice.”
458. The Court has determined that the State maintained in force a criminal norm included in
the Counter-terrorism Act that was contrary to the principle of legality and the principle of the
presumption of innocence, as indicated in paragraphs 168 to 177. This norm was applied to the
victims in this case to determine their criminal responsibility as authors of terrorist offenses
and, consequently, the Court found that Chile had violated the principle of legality in criminal
matters (Article 9) and the principle of the presumption of innocence (Article 8(2)), in relation
to the obligation to respect and ensure rights (Article 1(1)) and the obligation to adopt domestic
legal provisions (Article 2), to the detriment of Víctor Manuel Ancalaf Llaupe, Segundo Aniceto
Norín Catrimán, Pascual Huentequeo Pichún Paillalao, Juan Patricio Marileo Saravia, Florencio
Jaime Marileo Saravia, José Benicio Huenchunao Mariñán, Juan Ciriaco Millacheo Licán and
Patricia Roxana Troncoso Robles, all in the terms established in this Judgment.
459. The Court notes that the case file reveals that, under Law No. 20,467,439 the legal
presumption of terrorist intent that was applied to the presumed victims in this case was
eliminated. Since it has been proved by the State that the said provision is not in force, it is not
necessary to order a measure concerning the adaptation of domestic law on this specific point.
The Court will not make abstract considerations on Chilean laws in relation to the current
definition of offenses contained in the Counter-terrorism Act. The fact that, when ruling on the
merits, the Court did not consider it pertinent to analyze, in this case, other alleged violations
derived from the regulation of other aspects of the subjective element of the definition of the
439
Cf. Law No. 20,467 of October 8, 2010, which “[a]mends provisions of Law No.18,314 that define terrorist acts and
establish the corresponding punishments” (file of annexes to the Merits Report 176/10, annex 2, folios 12 to 15, file of
annexes to the CEJIL motions and arguments brief, annex B.1.3, folios 1759 to 1774, file of annexes to the FIDH motions
and arguments brief, annex 32, folios 883 to 1309, and file of annexes to the answering brief of the State, annex 4, folios
84 to 87).
148
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